Re Sahingoz - [2022] VSC 191

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0057

IN THE MATTER OF the Bail Act 1977 (Vic)

and

IN THE MATTER OF an Application for Bail by OMER SAHINGOZ

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JUDGE:	Champion J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2022
DATE OF JUDGMENT:	1 April 2022
CASE MAY BE CITED AS:	Re Sahingoz
MEDIUM NEUTRAL CITATION:	[2022] VSC 191

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CRIMINAL LAW – Application for bail – Applicant charged with drug trafficking, drug possession, possessing a prohibited weapon and bail offences – Strength of prosecution case – Acceptance in residential drug rehabilitation program – Exceptional circumstances not found – Unacceptable risk – Bail refused – Bail Act 1977 (Vic) ss 1B, 3AAA, 4, 4AA, 4E, 5AAA.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Tovey	Milides Lawyers
For the Respondent	Ms B Moleta	Victoria Police

HIS HONOUR:

Introduction and background

By application filed 4 March 2022, Omer Sahingoz (‘the applicant’) seeks a grant of bail in relation to the following nine charges brought by Constable Shaynie Morphett on 13 December 2021 (‘the Morphett offending’):

(a)Trafficking in drugs of dependence (two charges);
(b)Possessing drugs of dependence (three charges);
(c)Dealing with property suspected to be proceeds of crime (two charges);
(d)Possessing a prohibited weapon; and
(e)Committing an indictable offence while on bail.

The applicant has been on remand since being arrested and charged on 13 December 2021. He has been refused bail twice in the Dandenong Magistrates’ Court, first on 15 December 2021, and more recently on 17 February 2022, both times on the basis that he failed to show exceptional circumstances justifying a grant of bail. The matters are next listed for mention on 12 April 2022 in the Dandenong Magistrates’ Court.

There is one co-accused in this matter, Annie Nguyen. She is charged with two charges of trafficking in a drug of dependence; four charges of possessing a drug of dependence; and a single charge of dealing with property suspected of being proceeds of crime. She was granted bail in the Dandenong Magistrates’ Court on 14 December 2021, subject to various conditions including compliance with the Court Integrated Services Program (‘CISP’). The co-accused has no prior convictions, but has been previously discharged from two matters after completing diversions in 2015 and 2021. The co-accused’s matter is next listed for CISP monitoring on 12 April 2022 in the Dandenong Magistrates’ Court.

The application

The application is supported by the affidavit of Hassan Hamka, solicitor, dated 4 March 2022, attaching a series of exhibits, some of which will be referred to below. The applicant filed a nine page Outline of Submissions, supplementing these with oral submissions on the hearing of the application. The applicant called evidence from Mr Aaron Gilhooley, the Operations Manager of The Cottage, discussed further below.

In response to the application, the respondent filed an affidavit sworn by Nathan Peter Watt, government solicitor from Victoria Police, dated 16 March 2022, also attaching a series of exhibits, including an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Sahingoz

Details

AGLC: Re Sahingoz [2022] VSC 191
Case: [2022] VSC 191
Decision Date: 1 April 2022

CaseChat Overview and Summary

The case of Re Sahingoz involved an application for bail by the applicant who faced multiple criminal charges, including drug trafficking, drug possession, possession of a prohibited weapon, and bail offences. The matter was heard in the Magistrates’ Court of Victoria. The applicant sought release on bail pending the outcome of his criminal proceedings.

The court was required to determine whether the applicant met the criteria for bail under the Bail Act 1977 (Vic), particularly considering the seriousness of the charges and the strength of the prosecution’s case. The court also considered the applicant’s acceptance into a residential drug rehabilitation program as a factor that might mitigate the risk he posed to the community. However, the court found that exceptional circumstances were not present, and the risk of the applicant reoffending while on bail was unacceptable. Given the nature and severity of the charges, the court concluded that the applicant did not satisfy the conditions for bail.

The court denied the applicant’s bail application. It was held that the risk of reoffending, combined with the serious nature of the charges, outweighed any potential benefits of granting bail. The court’s decision was based on the balance of considerations under sections 1B, 3AAA, 4, 4AA, 4E, and 5AAA of the Bail Act 1977 (Vic). The applicant was to remain in custody pending the resolution of his criminal proceedings.

Orders